Monthly Archives: September 2009

“Except As Otherwise Specified in this Agreement”

As reported on ContractsProf Blog, the phrase except as otherwise specified in this agreement featured in newscaster Dan Rather’s contract with CBS. It also featured …

Continue Reading »

Posted in Uncategorized | 3 Comments

The Passive Voice Has Its Uses

MSCD 2.18 notes that the passive voice can be of use in contracts. Consider the following example: If any Person brings a proceeding to compel …

Continue Reading »

Posted in Uncategorized | 5 Comments

“And” and “Or” and Covering a Disparate Group

One of my afflictions is paranoia regarding and and or. (You may recall my deconstruction of a Toronto restroom notice.) Consider the following: If a …

Continue Reading »

Posted in Uncategorized | 6 Comments

On Declining to Post Comments

To my recollection, until a couple of weeks ago I had outright rejected only a single comment, and that was on grounds of undue snarkiness. …

Continue Reading »

Posted in Uncategorized | 2 Comments

“Representations and Warranties”—Glenn West Wades In

Following on this September 18 post and this September 20 post, the saga continues: Glenn West, partner at Weil Gotshal and author of the two …

Continue Reading »

Posted in Uncategorized | 1 Comment

If You’re New to This Site

If you’ve been lured to this site by my ABA Journal “Legal Rebels” profile and would like to learn more about what I do, you …

Continue Reading »

Posted in Uncategorized | 1 Comment

“Representations and Warranties”—A Handy 558-Word Analysis

It’s clear from reader feedback that I need to do a better job of explaining myself. Here goes: It’s pointless and confusing to use in …

Continue Reading »

Posted in Uncategorized | 2 Comments

Some Kinds of Backdating May Be Permissible, But that Doesn’t Make It a Good Idea

On the website of the state bar of Wisconsin I came across an article entitled “Backdating Documents: Not Necessarily the Stuff of Scandal.” It contains …

Continue Reading »

Posted in Uncategorized | 7 Comments

Revisiting “To the Best of Its Knowledge” (Plus Thoughts on the Marketplace of Ideas)

While reading Lorne & Bryan’s discussion of representations and warranties I encountered the following statement: Similarly, there should never be any objection to “representations” being …

Continue Reading »

Posted in Uncategorized | 6 Comments

Who Gets to Draft Contracts?

In this post on his licensinghandbook.com blog, Jeffrey Gordon suggests that lawyers should consider the value that contract specialists can bring to the contract process. …

Continue Reading »

Posted in Uncategorized | 5 Comments

“Representations and Warranties”—Once More, With Feeling

[Updated Sept. 20 12:30 p.m. EDT: I realized that I needed to provide a more succinct version of my analysis. If that’s what you’re looking …

Continue Reading »

Posted in Uncategorized | 5 Comments

New Article on Extra-Contractual Liability

The August 2009 issue of The Business Lawyer contains a great article by Glenn D. West and W. Benton Lewis, Jr. of Weil Gotshal entitled …

Continue Reading »

Posted in Uncategorized | Leave a comment

So I’m a Legal Rebel

As part of their ambitious Legal Rebels project, the ABA Journal has named me one of their fifty “Legal Rebels.” They’ve been rolling out profiles …

Continue Reading »

Posted in Uncategorized | 1 Comment

The Limits of “Relating To”

For all my dwelling on relating to, I haven’t considered at what point something might be too remote to a given circumstance to be related …

Continue Reading »

Posted in Uncategorized | 2 Comments

The Breast Cancer Research Foundation Taking Part in the Penn Law 2009 Redrafting Project

In this April 2009 post I solicited submissions from any company interested in taking part in this semester’s Penn Law redrafting project. But then I …

Continue Reading »

Posted in Uncategorized | Leave a comment

Lawyer and Contract Manager: Compare and Contrast

I was recently reminded of this article on the role of contract managers, as well as this follow-up article prompted by the recession. Both were written …

Continue Reading »

Posted in Uncategorized | 4 Comments

“In Other Words”

The other day I encountered in other words in a contract. An Edgar search indicates that it occurs often enough to be worth mentioning. In …

Continue Reading »

Posted in Uncategorized | 11 Comments

“Is Advisable and in the Best Interests Of”

[Revised 2:00 p.m. Sept. 11 to reflect comment by randomjohn] It’s commonplace for resolutions in board consents to state that something is advisable and in …

Continue Reading »

Posted in Uncategorized | 6 Comments

Superfluous Recitals in Merger Agreements

Methinks that the recitals in the average big-time-M&A merger agreement are bloated. By way of example, below are the recitals from the August 31, 2009, merger …

Continue Reading »

Posted in Uncategorized | 11 Comments

“Confidentiality” or “Nondisclosure”?

Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential—confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has …

Continue Reading »

Posted in Confidentiality Agreements | 13 Comments

New Edition of “Garner’s Modern American Usage”

I noticed that a third edition of Garner’s Modern American Usage has been published. I’ll be purchasing a copy, as GMAU has been the first thing …

Continue Reading »

Posted in Uncategorized | 2 Comments

If You Don’t Feel Challenged, You’re Not Paying Attention

I was pleased to receive the other day the following wry email: You’ve inspired me since your presentation to our firm back in May. I …

Continue Reading »

Posted in Uncategorized | Leave a comment

More on “Relating To” (Wherein Adams Eats Some Crow)

[Update October 18, 2009: This post has been supplanted by this new post. I'll be deleting this post in the next few days.] [Revised 12:45 …

Continue Reading »

Posted in Uncategorized | 2 Comments

A Reference Set of Definitions?

While at a social event in Saratoga recently, I had the pleasure of meeting Jerry Kaplan, senior counsel in McDermott Will & Emery’s Chicago office. Ever …

Continue Reading »

Posted in Uncategorized | 6 Comments